Citation Nr: 9910143
Decision Date: 04/12/99 Archive Date: 04/29/99
DOCKET NO. 94-42 067 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
1. Entitlement to an increased rating for the residuals of an
osteotomy of the jaw, rated 10 percent from August 1989 to
June 12, 1993; 30 percent from June 12, 1993, to November
3, 1997; and currently evaluated as 20 percent disabling,
from November 3, 1997.
2. Entitlement to an increased rating for a right knee
disorder, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from September 1984 to
November 1987.
This case comes to the Board of Veterans' Appeals (Board) on
appeal of an August 1992 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA), which confirmed and continued a 10
percent rating for the residuals of an osteotomy of the jaw
an increased the evaluation for the veteran's right knee
disorder to 20 percent.
The case was remanded by the Board in May 1997.
It is noted that, at her hearing on appeal in March 1993, the
veteran was informed that the only issues for appellate
review were for the evaluations of the residuals of an
osteotomy of the jaw and for the evaluation of a right knee
disorder, the notice of disagreement for which was taken at
the hearing itself. The veteran has subsequently raised
several additional issues for consideration by the RO. These
included service connection for low back and left knee
disorders and an application to reopen the claim for service
connection for the residuals of ovarian cyst surgery. These
issues have been addressed by the RO without further
disagreement by the veteran. It is also noted that during
the pendency of this appeal, the veteran was found to be
service connected for posttraumatic stress disorder (PTSD).
This disability is currently rated as 100 percent disabling.
FINDINGS OF FACT
1. In April 1992, the residuals of an osteotomy of the jaw
included sensory deficits of the lower mouth and chin,
limitation of masticatory function, and limitation of
interincisal opening to only 28 mm.
2. In June 1993, neurological residuals of an osteotomy of
the jaw included numbness of the chin and lower lip, slurring
of speech and involuntary biting of the lower lip that was
productive of severe incomplete paralysis.
3. In November 1997, the residuals of an osteotomy of the
jaw included lateral excursion on opening the mouth,
interincisal opening to 38 mm, pain and crepitus in the
TMJ's, and mild sensory loss in the lower mouth and chin
productive of moderate incomplete paralysis.
4. The veteran's right knee disorder is manifested by
limitation of function caused by pain, instability and muscle
atrophy that is productive of severe impairment.
CONCLUSIONS OF LAW
1. The criteria for a combined rating of 20 percent for the
residuals of an osteotomy of the jaw have been met.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.20, 4.124a,
4.150, Codes 8405, 9905 (effective prior to February 17,
1994).
2. The criteria for a rating in excess of 30 percent for the
neurological residuals of an osteotomy of the jaw were not
met in June 1993. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 4.20, 4.124a, Code 8405 (1998).
3. The criteria for a rating of 20 percent for the dental
residuals of an osteotomy of the jaw were met as of February
17, 1994. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.150,
Code 9905 (1998).
4. The criteria for a rating in excess of 20 percent for the
dental residuals of an osteotomy of the jaw have not been met
since November 1997. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.150, Code 9905 (1998).
5. The criteria for a separate 10 percent rating for the
neurological residuals of an osteotomy of the jaw are
currently met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.124a, Code 8405 (1998).
6. The criteria for a rating in excess of 30 percent for
right knee disorder have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § 4.71a, Code 5257 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
It is initially noted that these claims are well grounded;
that is, they are not inherently implausible and the facts
relevant to these issues on appeal have been properly
developed and the statutory obligation of the VA to assist the
veteran in the development of his claim has been satisfied.
38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629
(1992).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Where there is separate and distinct symptomatology of a
single condition it should be separately rated. Where the
symptomatology of a condition is duplicative or overlapping
with symptomatology of another condition, it may not receive
a separate evaluation. 38 C.F.R. §§ 4.14, 4.25; Esteban v.
Brown, 6 Vet. App. 259 (1994).
I. Residuals of an Osteotomy of the Jaw
The veteran sustained a dislocated mandible as the result of
trauma during service. Service connection for the residuals
of an osteotomy of the jaw, with hypesthesia in the
distribution of the mandibular nerve, was granted by the RO
in a July 1988 decision. A 10 percent rating was assigned at
that time on the basis of neuralgia of the 5th cranial
(trigeminal) nerve.
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. Nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20.
Ratings for the cranial nerves are for unilateral
involvement. With bilateral involvement, the ratings will be
combined, without the bilateral factor. 38 C.F.R. § 4.124a.
For moderate, incomplete neuralgia of the trigeminal nerve, a
10 percent evaluation is warranted. Severe incomplete
neuralgia warrants a 30 percent rating. A 50 percent rating
is warranted for complete paralysis of the trigeminal nerve.
38 C.F.R. § 4.124a, Code 8405.
Malunion of the mandible, with slight displacement, warrants
a noncompensable rating; with moderate displacement, a 10
percent rating is warranted; with severe displacement, a 20
percent rating is warranted. 38 C.F.R. § 4.150, Code 9904.
Limitation of motion of the temporomandibular articulation to
1/4 inch (6.3 mm) warrants a 40 percent rating; motion limited
to 1/2 inch (12.7 mm) warrants a 20 percent rating; with any
definite limitation, interfering with mastication or speech,
a 10 percent rating is warranted. 38 C.F.R. § 4.150, Code
9905 (effective prior to February 17, 1994).
Limitation of motion of the temporomandibular articulation to
between 31 to 40 mm of interincisal range, warrants a 10
percent rating. Limitation to between 21 to 30 mm warrants a
20 percent rating. Limitation to between 11 to 20 mm
warrants a 30 percent rating. Lateral excursion of between 0
to 4 mm warrants a 10 percent rating that shall not be
combined with rating of limited lateral excursion.
38 C.F.R. § 4.150, Code 9905 (effective February 17, 1994).
An examination was conducted by VA in January 1988. The
veteran reported that since her jaw surgery, she had had a
patch of numbness just to the left and to the right of the
mid line in the lower jaw. On examination, there was no
memory loss or aphasia. Speech was clear and there were no
bruits. Sense of smell was intact. Facial sensation was
intact, except for an approximate 3 cm, ill-defined, patch of
numbness to pin prick to each side of the midline of the
mandible. There was no facial weakness. The
sternocleidomastoid and trapezius were strong and equal. The
tongue was in the midline without atrophy or fasciculation.
The pertinent diagnosis was hypesthesia in the distribution
of the mandibular nerve, bilaterally.
A dental examination was performed by VA in May 1988. The
veteran's history of jaw fracture and subsequent surgeries
during service was reported. The veteran's jaw was shown to
be in excellent occlusal position, with no limitation of
motion or deviation on closing. There were no problems with
the temporomandibular joints (TMJ) and no loss of teeth. She
complained of pain on the right side when placing pressure on
the teeth. Clinically, proximal fragments of the mandible
overlapped past the distal fragment on the buccal aspect.
This appeared to be the result of the bilateral sliding
osteotomy procedure. Union of the bone was stable. X-ray
studies showed that the surgical sites appeared to be healing
within normal limits. The diagnosis was healed bilateral
osteotomy.
The veteran was hospitalized at a VA facility in May 1989.
It was noted that, while the surgical procedures performed
during service following the traumatic fracture of her
mandible had eventually resulted in good occlusion, the
veteran was experiencing right TMJ pain. Physical
examination showed right preauricular pain and pain to
palpation of the right masseter muscle. The veteran
underwent a right sagittal split osteotomy . She was
discharged after two days in good condition, but five days
later she presented back at the hospital with a chief
complaint of pus draining from her right mandible
extraorally. She was admitted and underwent observation for
suspected infection of the right mandibular osteotomy site.
She received I.V. antibiotics and was released in good
condition. The diagnosis was infected right mandibular
osteotomy site.
A dental examination was conducted by VA in April 1990. At
that time, the veteran complained of occasional pain on the
right side when chewing. The jaw was in excellent occlusal
position, with minimal limitation of motion on vertical
direction opening of 34 mm. No limitation in lateral
movements was noted. the TMJ's were asymptomatic. No
crepitus was noted. The veteran wore a night guard. She had
partial numbness and paresthesia along the distribution of
the nerve. A neuroma, removed during her May 1989 surgery,
was confirmed by biopsy. Union of the distal and proximal
bone was stable. X-ray studies showed the surgical sites to
be healing within normal limits. Surgical pins were in place
on the right side. The diagnosis was healed bilateral
osteotomy.
A dental examination was conducted by VA in April 1992. The
veteran stated that in March 1992, she noticed swelling of
the right side of the face that was tender to palpation. She
said she had limited opening, sharp radiating pain around the
angle of the mandible when chewing, and tenderness on
palpation. The edema raised in the morning and lessened at
night. There were also complaints of dry mouth and of a
"knot" in the area where pins had been surgically inserted
in 1989. On examination, the entire soft tissue area of the
right bruccal was edematous and very painful to the touch.
She was unable to express saliva from the right parotid
gland. There was no loss of substance, scarring, deformity,
speech abnormality, dysfunction or prosthesis. There was a
class I molar occlusion with no midline deviation. There was
a limited vertical opening of 28-mm incisal edge to incisal
edge and slight mandibular deviation to the right upon
opening. No crepitus of the TMJ was observed. The veteran
had no TMJ pain. Testing showed no obstruction of the right
parotid gland. Masticatory function was diminished due to
pain of mastication.
By rating decision of August 1992, the RO confirmed and
continued the 10 percent rating assigned for the veteran's
osteotomy residuals. However, limitation of masticatory
function was clearly demonstrated on VA dental examination.
This is a separate and distinct disability from the
trigeminal nerve involvement upon which her initial 10
percent rating was based. Therefore, a separate 10 percent
rating is warranted for limitation of masticatory function.
Moreover, the rating criteria was amended during the pendency
of this appeal. Where the law or regulation changes after
the claim has been filed, but before the administrative or
judicial process has been concluded, the version most
favorable to the veteran applies. Karnas v. Derwinski, 1
Vet. App. 308 (1991). Effective on February 17, 1994, new
regulations applicable to ratings of dental disabilities
became effective. As outlined above, the new regulations
provide for a 20 percent rating where the inter-incisal range
is between 21 to 30 mm. The veteran was only able to open
her mouth 28-mm. Clearly this corresponds to the 20 percent
rating, effective on February 17, 1988. The revised
regulation may not be applied prior to the effective date.
Rhodan v West, 12 Vet. App. 55 (1998). This rating is in
addition to the 10 percent rating assigned for trigeminal
nerve paralysis. Esteban v. Brown, 6 Vet. App. 259 (1994).
An examination was conducted by VA in June 1993. On
neurology evaluation, she reported numbness in the chin and
lower lip that had resulted in slurring of her speech,
constant biting of her lower lip, difficulty with eating and
difficulty with drooling. On examination, she had decreased
sensation in the peripheral distribution of the mandibular
nerve bilaterally. She had numbness to pinprick in the lower
lip and chin. This caused her speech to be slurred. The
diagnosis was mandibular nerve injury, bilaterally, secondary
to operative repair of mandibular injury. The examiner, went
on to state that this had resulted in fairly significant
disability, primarily manifested by severe slurring of the
speech and difficulty eating and drinking.
By rating decision in August 1993, the RO increased the
evaluation of the residuals of the veteran's bilateral
osteotomy of the jaw to 30 percent, effective on June 12,
1993, the date of the VA compensation examination. The
veteran continued her appeal, requesting a rating in excess
of this 30 percent rating. As noted, she has been found to
be entitled to a separate 10 percent rating until February
17, 1994, at which time the rating for the dental symptoms of
her disability is increased to 20 percent. For a rating in
excess of 30 percent based on the neurological symptoms alone
to be warranted, complete paralysis of the nerves enervating
the mouth and chin would have to be demonstrated. While the
June 1993 VA examination showed severe incomplete neuralgia,
complete paralysis of the nerves was clearly not
demonstrated. Therefore, a rating in excess of 30 percent
for the neurologic symptoms was not warranted.
By rating decision in August 1998, the RO reduced the
evaluation for the veteran's jaw osteotomy residuals to 20
percent on the basis of dental disability. The reduction
followed a VA examination that was conducted in November
1997. At that time on dental examination, the veteran
complained of pain in the lower right mandible on chewing and
upon placing pressure along the lower teeth. She also said
that her TMJ's hurt and that she had pain on opening her
mouth, the motion of which was limited. On objective
evaluation, Class II molar occlusion was noted. It was
reported that X-ray studies showed genioplasty screws and two
pins in the right mandibular ramus. The left condyle was
well-healed and non-displaced. There was no apparent loss of
substance, deformity or obvious scarring, other than the
genioplasty scar. There was no speech abnormality and no
dysfunction. No midline deviation was noted and interincisal
opening measured 38 mm, which was reported to be normal. On
opening, left excursive was at 12 mm and right excursive was
at 14 mm. The veteran's jaw deviated slightly to the right
on opening. A click was heard in the right TMJ and a popping
was felt in the left TMJ. There was no TMJ pain on
palpation. Masseter muscles were slightly tender to
palpation, as were the medial pterygoids. The tongue was at
midline and the sternocleidomastoid muscles were strong,
equal and nontender. No facial weakness was seen. There was
minor numbness in the area of the anterior mandible, but no
paralysis noted or functional loss of the musculature. The
examiner commented that the veteran seemed to be in pain but
that it was difficult to determine the precise location of
the pain because of the medications she was taking for
chronic pain. The diagnosis was well-healed bilateral
sagittal split osteotomy and left condyle, Class II,
malocclusion resulting from facial trauma and multiple
surgical procedures and pain of the right mandible. It was
believed that the pain could be the result of the location of
the mandibular pins, scar tissue from the surgical procedures
that had been performed, or the result of a "cracked" molar
tooth on the lower right side.
A neurological examination was conducted by VA in November
1997. The veteran complained of some dull throbbing pain in
her right lateral jaw and of numbness in her chin. She also
complained of pain in the left ear. She had undergone a
dermabrasion procedure to the right side of her face after
her last operation. She stated that the pain associated with
her right jaw and left ear was stable, and not progressive.
She was able to eat without difficulty, but did limit her
food to a mainly soft mechanical diet. On examination, there
was evidence of residual scarring from her dermabrasion on
the right cheek and down her right jaw to the midline.
Sensory examination showed mildly increased sensitivity to
pinprick to some facial areas, but sensation was decreased to
pinprick below her lower lip and to her chin. She had normal
marginal mandibular nerve function. She was able to pucker,
whistle and smile equally. Her tongue was midline with
normal motion. Sensation on the tongue was mildly decreased
on the left, as compared to the right. The diagnosis was
that there was no evidence of cranial neuropathies except for
some decreased sensation on her right face that was most
likely secondary to her dermabrasion. There was no cranial
nerve dysfunction seen from the osteotomy procedures that had
been done in the past.
The veteran has been rated 20 percent disabling due to the
dental symptoms of her osteotomy. The rating was made on the
basis of limited masticatory function due to pain and limited
motion of the jaw. Clearly, the rating is appropriate for
the dental disability, despite the improvement that has been
demonstrated. The veteran can now open her mouth to 38 mm,
but continues to have lateral deviation on opening. She has
pain on mastication and must limit the types of food she
eats. A rating of 30 percent on the basis of the dental
disability is not warranted as the criteria for that rating,
an inability to open the mouth to less than 20 mm, has not
been demonstrated in the record.
The dental disability for which the veteran has been rated
does not take into account the sensory impairment of her face
that has been consistently demonstrated on examinations
through the years. Despite the fact that the VA examiner did
not believe that any sensory deficit was related to the
osteotomy residuals, a longitudinal view of the record
clearly shows sensory involvement. There is clear
improvement of that demonstrated in 1993. The veteran no
longer has slurred speech nor does she bite her lower lip.
But, while a 30 percent rating for the bilateral sensory
involvement is no longer warranted, a separate 10 percent
rating is appropriate. Therefore, a combined evaluation for
the residuals of a jaw osteotomy is warranted.
II. Right Knee
Service connection for a right knee disorder was granted by
the RO in a July 1988 decision at which time a 20 percent
rating was assigned. That rating was increased to 30
percent, effective in April 1992, the date of the veteran's
current claim.
For moderate impairment of the knee, with recurrent
subluxation or lateral instability, a 20 percent rating is
warranted; a 30 percent rating requires severe impairment.
38 C.F.R. § 4.71a, Code 5257.
Limitation of flexion of either leg to 45 degrees warrants a
10 percent rating. A 20 percent rating requires that flexion
be limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260.
Limitation of extension to 20 degrees warrants a 30 percent
rating. A 40 percent rating requires that extension be
limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5261.
Ankylosis of the knee, at a favorable angle in full
extension, or in slight flexion between 0 degrees and 10
degrees, warrants a 30 percent rating. Ankylosis in flexion
between 10 degrees and 20 degrees warrants a 40 percent
rating. 38 C.F.R. § 4.71a, Code 5256.
An examination was conducted by VA in April 1992. At that
time, examination of the right knee showed no swelling, heat
or tenderness. The knee showed multiple arthroscopic scars
on the medial and lateral aspect of the knee. There was a 5-
cm arthrotomy scar in the infrapatellar area. The veteran
was tender over the lateral aspect of the lateral tibial
condyle. The right knee flexed to 110 degrees and extended
to within 15 degrees of 0 degrees, which the examiner
indicated was 25 degrees short of full extension. There was
a 0 to 1+ anterior drawer sign, but a negative posterior
drawer sign. There was some laxity of the medial collateral
ligament. The lateral ligament was unremarkable. There was
mild atrophy noted in the musculature of the distal third of
the right thigh. The diagnosis was status post injury of the
right knee, with multiple surgical repair.
An examination was conducted by VA in November 1997. At that
time, the veteran complained of persistent swelling and pain
in the knee. The pain was primarily anterior medial in
nature. She had previously used a wheelchair and was
currently using crutches and a brace. She was not
weightbearing on the right knee at all. Examination showed
well-healed incisions. Range of motion was from 0 to 120
degrees. She had tenderness to palpation over her patellar
tendon. She was also tender to palpation over her medial
joint line. She had no effusion and was stable to varus and
valgus stresses at 0 and 30 degrees. She had a soft endpoint
on Lachman's testing. She had a negative posterior drawer
sign. Minimal atrophy of the quadriceps muscles was noted.
Neurovascular examination was unremarkable. X-ray studies of
the right knee showed some mild lateral translation of the
tibia and femur and mild loss of articular height in the
lateral compartment. The studies were otherwise negative.
The impression was of multiple injuries of the right knee,
with some ligament damage and probable meniscal injury. It
was noted that the surgical procedures had resulted in loss
of a significant amount of meniscus and that she appeared to
have chronic ACL insufficiency. However, there was no varus
or valgus instability and no findings of significant
degenerative arthritis. The examiner went on to state that
the veteran's current problems with pain and swelling were
most likely related to her twisting injuries while in the
service, but the nature of her injury and the examination was
inconsistent with the fact that she was unable to weightbear
at all on the right knee.
The veteran had significant loss of extension on examination
by VA in 1992. In addition, she had pain and instability
that, in combination, rendered her right knee seriously
disabled. More recently, she has complaints of an inability
to bear weight on the knee at all. Although the examiner
felt the examination results were inconsistent with
nonweightbearing, the fact remains that the veteran has
functional impairment of her right knee that is productive of
severe impairment. Functional loss must be considered apart
from and in addition to the appropriate Diagnostic Codes in
the VA Schedule for Rating Disabilities. See DeLuca v.
Brown, 8 Vet. App. 202, at 204-206, 208 (1995). However,
despite this functional loss, the criteria for a 40 percent
rating have not been met. The veteran does not have
disability of the knee that approximates ankylosis of the
knee joint. Nor does she have extension limited to 30
degrees. Under these circumstances, a rating in excess of 30
percent is not warranted.
ORDER
A combined 20 percent rating for the residuals of an
osteotomy of the jaw is granted prior to June 12, 1193; a
combined 40 percent rating is granted from June 12, 1993 to
February 17, 1994; a combined 50 percent is granted from
February 17, 1994 to November 3, 1997; and a combined 30
percent is granted subsequent to November 3, 1997; subject to
the controlling regulations governing the payment of monetary
benefits. An increased rating for a right knee disorder is
denied.
JAMES W. ENGLE
Acting Member, Board of Veterans' Appeals